Coming Soon — More Wiretaps for More White Collar Crimes

The recent Raj Rajartnam verdict demonstrated that wiretap evidence is compelling evidence against defendants. No wonder prosecutors will use more and more wiretaps to build white collar cases.

Let’s brush aside one issue — wiretaps to investigated white collar crimes will rarely, if ever, be prohibited as a matter of law under current statutes. Wiretapping is authorized for wire fraud and almost every white collar crime can be defined to include wire fraud. Bribery, insider trading, fraud and other white collar crimes all will be authorized.

The only issue under the law will be whether or not investigators have exhausted all other investigative techniques before applying for a wiretap. Again, this will take a little work but rarely lead to suppression. Of course, there may be facts which make it a closer case but in the absence of some real sloppy investigative work, federal judges are unlikely to suppress wiretap evidence.

Wiretapping is a very cost and resource intensive technique. If successful, it is a very powerful tool for law enforcement. Juries like nothing better than to hear the defendants speaking on tapes, in their own words, and with real time descriptions.

White collar cases are hard enough to prove — they always turn on state of mind and there is no better window into a defendant’s mind than wiretapped conversations.

The Justice Department has used every tool in its arsenal for FCPA investigations and prosecutions, except wiretaps. Make no mistake — prosecutors may be currently engaged in a wiretap investigation or will launch one soon. Rest assured it is a goal of every federal prosecutor to do a “wiretap” case — and an FCPA case would be the perfect case in which to do one.

In the Sting case, the Justice Department used everything but a wiretap — search warrants, an informant, videotaping of meetings, one-party consensual recordings and an undercover officer. The last and final step will be the wiretap. Once that happens, the transformation will be complete — there is no difference in the government’s mind between a drug trafficker, organized crime figure and an FCPA violator.